Conflicts thwart reforms in state water policy

Plainfield — Three years after Brian Wolf bought his home on Long Lake in 2006, lawmakers and water policy experts began stopping by to see what had happened to the lake.

"It’s as if someone pulled the plug in a bathtub," Wolf told one group of visitors in November 2009. "This lake is dead."

Legislators left Wolf’s home in western Waushara County with plans to address growing worries about high-capacity wells and the effect groundwater pumping was having on lakes, rivers, streams and wetlands.

But lawmakers tried and failed to pass a groundwater bill in the 2010 legislative session. This year, legislative efforts also went nowhere.

This summer, the water in Long Lake is mostlygone, dotted by a few marshy areas. Cattails and grasses sprout from the former lake bed. Other traditionally shallow lakes in this region of sandy soil in the middle of the state have shared similar fates.

A dock on Long Lake near Coloma is surrounded by weeds. The lake has seen its water levels plummet and has become a marsh. Landowners blame the large number of high-capacity wells used to irrigate crops in the region.(Photo: Mark Hoffman / Milwaukee Journal Sentinel)

They have become symbols of the tug-of-war over water use in Wisconsin. The advantage has shifted to large water users as the number of high-capacity wells have proliferated and efforts to put more limits on the use of groundwater have foundered.

In a major policy shift, the Wisconsin Department of Natural Resources said on June 10 that it will no longer place restrictions on high-capacity wells, or deny applications for new wells, by first evaluating the cumulative effect they could have on the ecosystem.

A leading Wisconsin water scientist said the new approach is a step backward.

“The frustrating thing for me is that it puts us back on a footing of an unplanned future for water use,” said Ken Bradbury, director of the Wisconsin Geological and Natural History Survey. “In other words, it’s sort of everyone for themselves again.”

The DNR changed its review process after receiving a legal opinion from Republican Attorney General Brad Schimel, who concluded the agency did not have the authority to consider the compounding effects of such water use. He was responding to a request from Assembly Speaker Robin Vos (R-Rochester) and a GOP-dominated legislative committee.

“It was all a predetermined, preordained strategy by the attorney general, the DNR, the governor and Robin Vos and the Legislature,” said Carl Sinderbrand, a Madison attorney who has litigated cases involving high-capacity wells. “They wanted to prevent the DNR from regulating wells.”

The May 10 opinion by Schimel hinged on a 2011 law, Act 21, passed in the early months of Gov. Scott Walker’s first term, that sought to rein in discretionary authority of state agencies. The law prohibits agencies from writing rules or imposing conditions without explicit approval from lawmakers.

Act 21 was a high priority for Walker and fellow Republicans, who believed it would send a “clear signal that rules are to be based on laws passed by the Legislature and not by the agendas of unelected bureaucrats within state agencies,” he said in a statement a month before taking office.

Wolf remembers when Long Lake was still a lake. The DNR says that it once had a maximum depth of 14 feet. By 2007, Wolf said it was 6 feet deep. Two years later, it no longer resembled a lake.

"We go from puddles to marsh," Wolf said recently. “We’re nature people. We enjoy watching the birds migrating over. We enjoy it from that aspect. But to go down to the dock and sit by the lake, we don’t have that.”

After their visits to stressed areas of the Central Sands, Democrats introduced a bill in 2010 requiring tougher water conservation practices and limits on excessive water use. The legislation also gave citizens the right to challenge high-capacity wells.

But the measure died in the waning months of Democratic control and was opposed by agriculture and business groups that feared limits on irrigation would spell financial harm.

Wisconsin's last significant groundwater protection bill was signed into law in 2004. The law expanded the authority of the DNR by requiring itto conduct environmental reviews within 1,200 feet of a trout stream or in other limited cases.

The law passed with support from Republicans and Democrats, and swirling in the background was citizens' frustration with what they saw as a limited say in Perrier Group of America's plans to bottle water near the Mecan River in Waushara County and, later, at an alternative site. The company eventually dropped its plans.

Also, the City of Waukesha was struggling with radium-tainted wells caused by overpumping of groundwater. Waukesha would have to wait until this year for approvalfrom other states to divert Lake Michigan water through the Great Lakes Compact. Barring legal challenges, Waukesha will become the first city in the United States outside the Great Lakes basin to receive lake water under the accord.

Neal Kedzie, then a Republican senator from Elkhorn whose district included a part of Waukesha, said in a 2004 interview with the Milwaukee Journal Sentinel that the city’s water troubles were “just a forewarning for the rest of the state.”

“We’re really being drawn now to the bigger issue of groundwater, realizing that we can’t just deal with surface water anymore, like lakes and streams,” he said.

“If you look back,” ToddAmbs said, “everybody at the time said that this was a good first step. Democrats and Republicans acknowledged it was just that.”

Ambs was a water regulator at the Department of Natural Resources under Democratic Gov. Jim Doyle and is currently director of the environmental group Healing Our Waters-Great Lakes Coalition.

“We knew 15 years ago that we had a problem,” said Ambs, a critic of the DNR's decision to limit oversight of large wells. “And here we are all these years later. Not only are we not moving forward. We’re taking a step backward.”

In a draft report last week, the Wisconsin Academy of Sciences, Arts and Letters found that state policy has not kept up with the rising demand for groundwater, especially in the Central Sands. The academy first looked at water issues in 2003. Its steering committee is composed largely of representatives of environmental organizations and university researchers.

Water issues traditionally enjoyed bipartisanship in Wisconsin. But the paper noted: "That culture of collaboration has slipped away at the state policy level, and in some cases the federal level as well. Wisconsin's political climate has grown increasingly polarized, and civil deliberation and compromise in policy debates are no longer the norm."

This year, Republican lawmakers who control the Assembly and Senate tried — and failed — to pass groundwater bills. One Republican measure contained some protections. But a bill advanced by Democrats with stronger safeguards was not scheduled for a hearing.

An irrigation system waters crops Wednesday in Coloma, in the Central Sands region, 1.75 million acres in central Wisconsin where there is a large concentration of high-capacity wells used for irrigation. Scientists are concerned these wells are affecting the levels of lakes and streams.(Photo: Mark Hoffman / Milwaukee Journal Sentinel)

Agriculture is gearing up for another fight in 2017. In an Aug. 25 email to members, Tamas Houlihan, executive director of the Wisconsin Potato and Vegetable Growers Association, said the group is raising money for lobbying and a public relations campaign emphasizing growers’ water conservation efforts.

"We get heavily criticized in the press and the media," Houlihan said in an interview. "And our growers feel that pressure. We have to balance the needs of irrigated vegetable production with healthy rivers.”

The DNR's oversight over large wells has evolved over time.

The DNR started looking more closely at well applications in 2011 after a landmark state Supreme Court decision involving the Village of East Troy in Walworth County and the impact a municipal well would have on Lake Beulah. The justices in a 7-0 decision said the DNR, “has the authority and a general duty to consider whether a proposed high-capacity well may harm waters of the state.”

The opinion came down nearly a month after the Republican bill, Act 21, was enacted.

Another court case spurred more scrutiny by the DNR. In that matter, Administrative Law Judge Jeffrey Boldt ruled in 2014 in a case involving the construction of a large dairy farm that the DNR must consider the cumulative effects of large wells for the project.

He ruled the DNR “took an unreasonably limited view” of its authority and had not considered the accumulated effects of water use — despite testimony showing irrigation had already lowered the water table and damaged trout streams and neighboring Pleasant Lake.

“The decision required us to look not only at the property, but other properties in the area to better understand what the impact would be,” said Larry Lynch, a hydrogeologist with the DNR.

Homeowners on Huron Lake in Plainfield have seen the water level drop over the years.(Photo: Mark Hoffman / Milwaukee Journal Sentinel)

Meanwhile, the demand for big wells was growing. The agency received more than 900 applications between 2011 and 2013, creating a one-year backlog. Some well applications were rejected. In other cases, applicants withdrew requests. The agency has since whittled down the number by more than 100 under its new policy.

In his opinion, Schimel said he was giving more weight to Act 21 than to either the Public Trust Doctrine or the Lake Beulah case. The doctrine requires the state to protect navigable waters and it's evolved in other court cases to give the DNR more authority to protect water resources.

But Schimel wrote that “nowhere in the constitution is there language delegating that duty to the DNR. Rather, the Legislature maintains the duty of trustee and can choose to delegate that duty in whole or in part to an administrative agency, or to maintain control and carry out the duty itself.”

Attorney Robert Fassbender, president of the conservative Great Lakes Legal Foundation, agreed with Schimel. In a statement after the decision, he said the opinion "reflects the clear intent of Governor Walker and the Legislature when enacting Act 21." He said it did not represent a "shift in the law as much as a reassertion that the Legislature is the source of agency authority."

Opponents said they believe the attorney general has misplaced his emphasis on one state law over a Supreme Court decision and the DNR’s public trust responsibilities.

Attorney Sinderbrand predicts a court challenge.

“The bigger constitutional issue,” he said, "is Wisconsin government has the obligation to manage water for the benefit of the public, and courts have delegated authority on such issues for years to the DNR."

A dock on Long Lake surrounded by weeds comes up short on deeper water. (Photo: Mark Hoffman / Milwaukee Journal Sentinel)

An irrigation system waters crops Wednesday in Coloma, in the Central Sands region, 1.75 million acres in central Wisconsin where there is a large concentration of high-capacity wells used for irrigation. Scientists are concerned these wells are affecting the levels of lakes and streams. (Photo: Mark Hoffman / Milwaukee Journal Sentinel)